DECISION 


OF  THE 


COMMISSIONER  of  the  GENERAL  LAND  OFFICE 


IN  THE  MATTER  OF 


THE  APPLICATION  BY  GEORGE  F.  BLANCHARD  TO  LOCATE  WITH 
VALENTINE   SCRIP   A   CERTAIN  TRACT  OF  LAND    KNOWN  AS 
THE   ADDITION    TO   FRACTIONAL  SECTION  15  IN  TOWN- 
SHIP 39  NORTH,  OF  RANGE   14    EAST  OF  THE   THIRD 
PRINCIPAL  MERIDIAN,  IN  COOK  COUNTY,  ILLINOIS. 


WASHINGTON: 

GOVERNMENT     PRINTING    OFFICE. 

1878. 


DECISION 


4 


OF   THE 


COMMISSIONER  of  the  GENERAL  LAND  OFFICE 


IN  THE  MATTER  OF 


THE  APPLICATION  BY  GEORGE  F.  BLANCHARD  TO  LOCATE  WITH 
VALENTINE   SCRIP   A    CERTAIN  TRACT  OF  LAND    KNOWN  AS 
THE   ADDITION    TO   FRACTIONAL  SECTION  15  IN  TOWN- 
SHIP 39  NORTH,  OF  RANGE   14    EAST  OF  THE   THIRD 
PRINCIPAL  MERIDIAN,  IN  COOK  COUNTY,  ILLINOIS. 


WASHINGTON: 

GOVERNMENT     PRINTING    OFFICE. 

1878. 


Go  49 1 L 


Department  of  the  Interior, 

General  Land  Office, 
Washington,  D.  C,  February  12,  1878. 

Sir:  I  have  considered  the  application  of  George  F.  Blanchard  for  a 
patent  to  the  following  strip  or  tract  of  land,  to  wit :  Bounded  north  by  the 
line  between  fractional  sections  10  and  15,  township  39  N.,  range  14  E. 
of  third  P.  M.,  extended  east  4  chains  and  74  links  from  the  corner  estab- 
lished in  1821,  and  17  chains  and  30  links;  east  of  the  corner  of  sections  9, 
10, 15,  and  16  west,  by  the  aforesaid  fractional  section  15,  as  surveyed  in 
1821;  south  and  east,  by  the  shore  of  Lake  Michigan,  as  defined  by  Dep- 
uty Surveyor  Talcott.     Said  tract  of  land  extends  from  the  aforesaid 
easterly  extension  of  the  line  between  sections  10  and  15;  on  the  north, 
to  the  shore  of  Lake  Michigan,  as  defined  by  Deputy  Surveyor  Talcott 
aforesaid;  on  the  south,  and  from  said  fractional  section  15,  as  surveyed 
in  1821 ;  on  the  west,  to  Lake  Michigan ;  on  the  east,  as  defined  by  Deputy 
Surveyor  Talcott  as  aforesaid,  and  as  shown  by  a  map  or  diagram 
hereto  annexed  and  made  part  of  this  application  ;    said  tract  or&par- 
cel  of  land  being  known  as  the  addition  to  fractional  section  No.  15  in 
township  No.  39  N.,  of  range  14  E.,  of  third  P.  M.,  in  the  district  of  lands 
subject  to  sale  at  the  land  office  at  Springfield,  111.,  containing  11JU_ 
acres.     Upon  the  26th  day  of  July,  1875,  Mr.  Blanchard  applied  to  the 
register  and  receiver  of  the  local  land  office  at  Springfield,  111.,  to  locate 
special  certificate  E,  No.  31,  Valentine  scrip,  upon  the  tract,  which  was 
allowed,  and  certificate  thereof  given  the  applicant. 

The  scrip  referred  to  was  authorized  by  an  act  of  Congress  approved 
April  5,  1872  (17  Stat,,  p.  649),  and  contained  the  following  language: 

Now  therefore,  be  it  known  that  on  the  surrender  of  his  certificate  to  the  register 
of  any  land  office  of  the  United  States,  the  said  Thomas  B.  Valentine  or  his  legal  rep- 
resentatives shall  be  entitled  to  enter  in  part  satisfaction  of  said  claim  the  quantity 
ot—  acres  of  land  upon  any  of  the  unoccupied  and  unappropriated  public  lands  of 
the  United  States  not  mineral,  and  in  tracts  not  less  than  the  subdivisions  provided 
for  in  the  United  States  land  laws,  and  if  unsurveyed  when  taken,  to  conform  when 
surveyed  to  the  general  system  of  the  United  States  land  surveys. 

The  act  referred  to  authorized  the  assignment  of  this  certificate  or 
scrip,  and  it  is  not  disputed  that  the  applicant  here  is  the  legal  repre- 
sentative of  Valentine. 

It  will  be  seen  from  the  foregoing  that  there  were  three  restrictions 
placed  upon  the  location  of  this  scrip. 

1st.  The  lands  selected  were  to  be  "  unoccupied  and  unappropriated." 

2d.  They  were  to  be  "  public  lands  of  the  United  States'" 

3d.  They  were  to  be  "  not  mineral." 


It  is  not  pretended  that  the  land  in  question  is  mineral,  and  it  only  re- 
mains to  be  seen  whether  it  was  at  the  time  of  the  location  in  question 
"  unoccupied  and  unappropriated"  and  public  lands  of  the  United  States. 

As  establishing  the  fact  that  it  was  of  the  latter  class,  it  is  urged  by 
the  applicant  that  the  government  in  1836  authorized  the  survey  of  the 
same  as  such,  and  that  in  1875  the  register  and  receiver  of  the  proper 
land  office  allowed  the  location  of  this  scrip  thereupon. 

I  deem  it  sufficient  to  say  that  so  far  as  the  act  of  the  register  and 
receiver  is  concerned,  no  presumption  arises  therefrom,  further  than 
that  of  the  correct  performance  of  their  ministerial  duty. 

No  act  on  their  part  can,  in  any  case,  be  considered  to  preclude  this 
office  from  refusing  or  granting  a  patent,  as  in  the  judgment  of  the  Com- 
missioner the  law  and  the  facts  require. 

It  may  very  naturally  happen  that  surveys  may  be  authorized,  through 
mistake,  accident,  or  a  misapprehension  of  law  or  facts,  of  lands  clearly 
not  subject  thereto. 

It  cannot  be  claimed,  certainly,  that  the  Commissioner  would  in  such 
a  case  be  bound  to  continue  the  error  by  granting  a  patent  thereupon. 
(Magwire  v.  Tyler  et  al.,  1  Black,  195.)  On  the  other  hand,  it  is  clear 
that,  if  there  has  not  been  any  survey  of  this  land  by  the  government, 
or  only  an  irregular,  illegal,  or  unauthorized  one,  then  no  patent  can  is- 
sue to  the  applicant.  While  it  may  be  admitted  that,  by  the  terms  of 
the  act  referred  to  and  the  certificate,  this  scrip  could  be  located  upon 
uu surveyed  lands,  it  is  no  less  clear  that  no  patent  can  issue  therefor 
until  there  has  been  a  survey  of  the  land  located  upon. 

I  will  now  consider  the  question  as  to  whether  there  has  been  any 
proper,  legal,  and  duly  authorized  and  approved  survey  of  the  land  in 
question. 

That,  as  a  matter  of  fact,  there  was  a  survey  made  of  a  tract  of  land 
conforming  to  the  description  set  out  by  a  Mr.  Talcott,  in  1836,  is  not 
disputed. 

I  will  consider  this  question  from  another  standpoint. 

The  authority  upon  which  this  survey  was  made  was  an  order  given 
by  E.  T.  Langham,  United  States  surveyor  general,  to  Edward  B.  Tal- 
cott, deputy  United  States  surveyor,  dated  February  13, 1836.  The  sur- 
vey was  made  during  the  same  mouth,  and  a  plat  thereof,  it  seems, 
immediately  filed  with  the  register  of  the  local  office.  This  act,  it  is 
claimed,  however,  was  irregular,  as  was  the  act  of  the  surveyor  general 
in  ordering  the  survey.  These  questions  need  only  be  incidentally  re- 
ferred to,  for  the  ordering  of  the  survey  would  not  preclude  the  officer 
making  the  order,  or  his  successor,  or  another  officer  of  the  government, 
to  whom  the  duties  of  his  office  in  this  respect  had  been  transferred,  from 
rejecting  it  upon  discovery  either  that  the  survey  itself  was  not  prop- 
erly executed,  or  that  it  was  without  authority  of  law,  or  made  upon 
lands  not  subject  to  survey. 

I  believe  that  it  is  not  claimed  that  there  has  ever  been  any  approval 


of  this  survey  by  any  authorized  person,  further  than  what  may  be  im- 
plied from  the  language  used  in  a  letter  from  Mr.  Whitcomb,  Commis- 
sioner, to  Mr.  Dunklin,  surveyor  general,  dated  May  5,  1837,  in  which 
the  latter  is  authorized  to  settle  Mr.  Talcott's  account  u  and  preserve 
the  original  field  notes,  plats,  &c,  on  file  in  your  [his]  office." 

"  You  are  advised,"  the  letter  adds,  "  that  this  letter  is  not  to  be  con 
strued  as  authorizing  the  surveyor  general  to  direct  similar  surveys 
without  instructions  from  this  office." 

But  this  language  will  hardly  be  construed  into  an  approval  of  the 
survey,  when  considered  in  connection  with  the  former  part  of  the  letter, 
in  which  the  Commissioner  says :  "  You  are  hereby  directed  to  withhold 
your  approval  of  said  survey  by  Mr.  Talcott  until  further  advice  from 
this  office." 

Not  only  has  this  survey  never  had  any  approval,  but,  on  the  contrary, 
has  been  repeatedly  disapproved  and  rejected,  both  because  it  was  not 
correctly  doue,  or  done  in  accordance  with  law,  and  because  the  land 
was  not  subject  to  survey. 

Of  date  January  14,  1857,  the  Commissioner  wrote  the  surveyor  gen- 
eral, informing  him  that  his  attention  had  been  called  to  the  entries 
made  upon  this  land  by  Mark  Noble  and  Mark  Noble,  jr.  These  entries 
were  made  on  the  31st  day  of  May,  1836,  under  floats  accruing  to  them 
under  the  act  of  Congress  approved  May  29,  1830,  the  former  taking 
that  part  lying  within  or  adjacent  to  section  10,  and  the  latter  that  part 
adjacent  to  section  15.  The  Commissioner  says :  "  Since  the  township  plat 
on  file  in  this  office  exhibits  no  such  additional  fractions,  and  it  does  not 
appear  that  any  particular  instructions  have  heretofore  emanated  from 
this  office,  either  for  a  resurvey  or  for  new  surveys  in  the  township,  I 
have  to  request  that  you  will  examine  the  subject,  *  *  *  and  also 
trausmit  plats  thereof  due  to  this  office  at  your  earliest  convenience." 

In  compliance  with  the  request  made  by  this  letter  the  plats  were  sent. 

The  Commissioner  again  wrote  the  surveyor  general  of  date  March  6, 
1837,  and  in  this  letter  he  says: 

The  facts,  as  far  as  they  are  known  to  this  office,  warrant  the  belief  that  these 
additions  are  gradual  accretions  from  the  lake,  and  as  such  cannot  be  separated  from 
the  sections  of  which  they  form  a  component  parr.  How  your  predecessor  could  issue 
instructions  for  the  survey  under  the  circumstances,  and  what  appears  still  more  inex- 
plicable, how  he  could  permit  such  separate  fractions  to  be  annexed  to  the  sections,  contrary  to 
the  surveying  laivs  and  the  general  instructions  from  this  office,  which  do  not  recognize  subdi- 
visions like  those  presented  by  this  plat,  remains  yet  to  be  explained.  You  will  at  once  see 
the  propriety  of  continuing  to  withhold  your  approval  of  the  survey,  and  of  course  the 
payment  of  Mr.  Talcott's  accounts,  should  he  apply  for  it,  until  such  time  as  the  business 
can  be  thoroughly  examined. 

After  this,  and  upon  the  receipt  of  the  instructions  issued  to  Talcott, 
which  at  first  could  not  be  found,  the  Commissioner  wrote  the  letter  of 
May  5,  1837,  first  above  quoted  from. 

On  the  4th  day  of  April,  1838,  the  Commissioner  wrote  the  register 
and  receiver  to  cancel  the  Noble  entries,  expressing  like  views  with 


6 

reference  to  the  status  of  this  land  that  he  had  expressed  to  the  sur- 
veyor general. 

If  the  Commissioner  had  authority  to  reject  the  entries  of  the  Nobles 
as  he  did,  and  for  the  reasons,  the  decisions  then  made  by  him  should 
be  a  precedent  and  binding  on  me  now.  If  not,  then  the  Nobles,  unless 
they  have  waived  their  rights,  are  justly  entitled  to  claim  this  land. 

All  the  facts  and  all  the  law  which  can  possibly  be  urged  in  favor  of 
Mr.  Blanchard's  claim  now,  could  have  been  and  undoubtedly  were 
urged  in  favor  of  the  claims  of  the  Nobles  then.  This  office  then  de- 
cided that  the  land  was  not  public  land,  and  that  the  Talcott  survey 
was  unauthorized  and  not  binding  on  the  Government. 

It  is  claimed  that  the  Commissioner  had  no  authority  to  reject  this 
survey.  This  claim  is  clearly  untenable.  The  case  of  Magwire  v.  Tyler 
et  al.,  decided  by  the  Supreme  Court  of  the  United  States  (1  Black,  195), 
is  exactly  in  point,  and  decides  that  the  Commissioner  of  the  General 
Land  Office  possessed  this  power  under  the  act  of  1812. 

In  harmony  with  this  view  is  the  uniform  custom  of  the  office.  ,  It 
will  be  seen  by  an  examination  of  the  records  of  this  office  that  for  per- 
haps half  of  a  century,  more  or  less,  the  Commissioner  of  the  General 
Land  Office,  part  of  the  time  acting  under  the  Secretary  of  the  Treasury, 
has  exercised  control  over  the  subject  of  the  public  land  surveys,  in  al- 
most every  conceivable  phase,  ordering  and  rejecting  the  same,  ordering 
resurveys  and  corrections.  This  custom  or  exercise  of  authority  on  the 
part  of  this  officer  of  the  Government,  so  long  practiced  and  acquiesced 
in,  would  of  itself  be  sufficient  authority  for  the  action  of  the  Commis- 
sioner in  rejecting  the  survey  as  he  did. 

In  the  case  of  Barnard  v.  Ashley  (18  How.,  45),  the  court  says,  "  But  if 
the  construction  of  the  act  of  1836  to  this  effect  were  doubtful,  the  prac- 
tice under  it  for  nearly  twenty  years  could  not  be  disturbed  without 
manifest  impropriety." 

Were  this  otherwise,  it  will  be  noticed  that  an  act  of  Congress,  giving 
to  the  Commissioner  of  the  General  Land  Office  general  and  specific 
jurisdiction  over  the  subject  of  the  public  land  surveys  was  passed  July 
4,  1836.  That  while  the  Talcott  survey  had  been  made  in  February, 
1836,  no  action  had  been  had  thereon,  either  to  approve  or  reject,  by  the 
surveyor  general  or  the  Commissioner  of  the  General  Land  Office,  until 
February,  1837.  At  this  time  the  Commissioner  had  undoubted  jurisdic- 
tion of  the  subject,  and,  itcannot  be  doubted,  had  full  authority  to  pass 
upon  any  former  survey  which  had  not  before  been  acted  upon  by  him- 
self or  any  other  officer  of  the  government  whose  duty  it  was  to  do  so, 
prior  to  said  act.  In  the  case  of  Magwire  v.  Tyler,  supra,  it  is  shown 
that  the  Secretary  of  the  Interior,  in  1851,  revising  on  appeal  the  decis- 
ion of  the  Commissioner,  very  properly,  as  it  was  held,  set  aside  a  survey 
made  in  1817. 

It  is  clear  that,  if  I  am  correct  in  the  foregoing  conclusions,  no  patent 


can  issue  in  this  case  to  Mr.  Blanehard,  and  that,  so  far  as  the  question 
of  the  Talcott  survey  is  concerned,  it  is  res  adjudicata. 

In  1822  Congress  authorized  the  survey  of  the  route  of  a  canal  con- 
necting the  Illinois  River  with   Lake  Michigan,  and  on  the  2d  day  of 
March,  1827,  made  a  grant  of  land  to  the  State  of  Illinois  for  the  pur- 
pose of  constructing  the  same.     Under  this  act  and  the  acts  amendatory 
thereof  the  fractional  section  15,  referred  to,  was  allotted  to  the  State. 

But  it  is  claimed  by  the  applicant  that  fractional  section  15  did  not 
include  the  land  or  sand  bar  in  question  ;  that  the  canal  commissioners 
took  according  to  the  survey  of  1821 ;  that  as  a  matter  of  fact  said  sur- 
vey did  not  extend  to  Lake  Michigan  on  the  east,  but  to  the  Chicago 
River,  which,  it  is  claimed,  at  that  time  was  between  the  meander  line 
of  said  survey  and  the  lake. 

What  the  facts  were,  with  reference  to  this  statement,  I  have  not  suffi- 
cient testimony  before  me  to  certainly  determine.  The  case  of  Bates  v. 
Illinois  Central  Railway  Co.  (1  Black,  204)  establishes  the  fact  that  at 
the  time  of  and  by  the  survey  in  1821  the  mouth  of  the  Chicago  River 
was  fixed  at  the  N".  E.  corner  of  the  S.  W.  fractional  J  of  section  10,  by 
reason  of  an  artificial  outlet  cut  through  the  sand  bar.  There  is  evi- 
dence tending  to  show,  too,  that  the  natural  mouth  of  the  river  was 
near  the  section  line  between  sections  10  and  15.  This  is  shown  by 
the  plat  of  the  survey  of  1821,  as  it  is  claimed  that  it  is  also  even  by  the 
Talcott  survey.  The  meander  line  of  the  survey  of  1821  lies  west  of  the 
east  line  of  the  Talcott  survey,  yet  the  field  notes  of  said  former  survey 
describe  the  fractional  section  15  as  bounded  on  the  east  by  the  lake, 
and  there  being  no  evidence  showing  that  such  was  not  the  fact  so  far 
as  relates  to  section  15,  it  must  be  accepted  as  a  fact,  and  whatever  ac- 
cretions have  since  been  made  to  said  section  passed  to  the  State  with 
the  section  under  the  grant  for  canal  purposes  in  1827,  according  to  the 
established  doctrine  of  riparian  rights  on  navigable  waters.  Railroad 
Co.  v.  Schurmeir,  7  Wallace,  273;  County  of  Saint  Clair  v.  Lovingston, 
23  Wallace,  62  and  63;  New  Orleans  v.  United  States,  10  Peters,  662; 
Barney  v.  Keokuk,  4  Otto,  325 ;  Buck  v.  Ogden,  2  Wallace,  57 ; 
Saulet  v.  Shepherd,  4  Wallace,  502;  5  Opinions  Attorney  General,  264; 
Yates  v.  Milwaukee,  10  Wallace,  497;  Jones  et  al.  v.  Johnston,  18 
Howard,  150;  Watkins  v.  Holman  et  al.,  16  Peters,  25;  Jones  v.  Sou- 
lard,  24  Howard,  41. 

In  1836  the  canal  commissioners,  under  authority  of  the  State  legis- 
lature, laid  out  fractional  section  15  into  lots,  blocks,  &c,  and  dedicated 
as  much  of  the  land  in  question  to  the*  city  of  Chicago  as  a  public  park 
as  was  then  in  existence.  This  dedication  was  approved  and  has  since 
been  recognized  by  the  State  legislature. 

The  case  of  the  Railroad  Company  v.  Schurmeir,  7  Wallace,  272,  must 
govern  in  arriving  at  a  determination  in  this  case. 

In  that  case,  that  the  plaintiff,  the  railroad  company,  had  a  better 
claim,  for  the  survey  of  a  like  tract  or  sand  bar,  was  not  questioned, 
either  on  account  of  authority  to  make  the  same  or  its  having  been  re- 


8 


jected.  The  court  in  that  case  laid  down  the  law  to  be  "  that  the  meander 
lines  run  in  surveying  fractional  portions  of  the  public  lands  bordering 
upon  navigable  rivers,  are  run,  not  as  boundaries  of  the  tract,  but  for 
the  purpose  of  defining  the  sinuosities  of  the  banks  of  the  stream,  and 
as  the  means  of  ascertaining  the  quantity  of  the  land  in  the  fraction, 
and  which  is  to  be  paid  for  by  the  purchaser." 

A  government  grant  of  land  in  Minnesota  (9.28  acres)  bounded  on  one  side  by  the 
Mississippi  was  held  to  include  a  parcel  (2.78  acres)  four  feet  lower  than  the  main 
body,  and  which  at  very  low  water  was  separated  from  it  by  a  slough  or  channel 
twenty-eight  feet  wide  through  which  no  water  flowed,  but  in  which  water  remained 
in  pools  ;  when  at  medium  water  it  flowed  through  the  depression  making  an  island 
of  the  parcel ;  and  when  at  high  water  the  parcel  was  submerged,  the  whole  place 
having  previous  to  the  controversy  been  laid  out  as  a  city,  and  the  municipal  authori- 
ties having  graded  and  filled  up  the  place  to  the  river  edge  of  the  parcel. 

I  decide  that  the  patent  asked  for  in  this  case  must  be  relused.     All 
parties  in  interest  will  be  advised  of  this  decision,  and  Mr.  Blanchard 
will  be  allowed  the  usual  sixty  days  in  which  to  file  an  appeal  to  the 
honorable  Secretary  of  the  Interior. 
Very  respectfully, 


J.  A.  WILLIAMSON, 

Commissioner. 


C.  F.  Peck,  Esq. 
Hon.  S.  B.  Elkins, 
Henry  Beard,  Esq., 

Washington ,  D.  C. 
Hon.  Lyman  Trumbull, 
Hon.  Jos.  F.  Bonfield, 

Chicago,  Ills. 


54g 


